notice to vacate

If the landlord wants you to move out of the property, they must give you a valid notice to vacate. There are various reasons why your landlord can give you a notice to vacate, and the length of the notice period depends on why the landlord is giving you notice and whether or not you have a fixed-term tenancy agreement.

It is important to note that just because you receive a notice to vacate, it doesn’t necessarily mean that you have to move out. If the landlord wants to evict you, they must first apply to the Victorian Civil and Administrative Tribunal and convince the Tribunal that they should be granted a possession order.

immediate notice to vacate

The landlord can give an immediate notice to vacate if the rented premises are destroyed or unfit to live in. An immediate notice can also be given if you (or a visitor to your home) deliberately damage the property or endanger the safety of neighbours.

The Tribunal requires substantial proof from landlords in these cases. If you receive an immediate notice to vacate you should contact us for urgent advice.

14-day notice to vacate

A 14-day Notice to Vacate can be given when:

your rent is 14 days in arrears (ie overdue)

you fail to pay the bond (if your tenancy agreement says you have to pay a bond)

you assign or sub-let the premises without the landlord’s consent

your lease has a condition prohibiting children from living on the premises and you are breaking that condition

you used the property for an illegal purpose (or allowed other people to do so)

you fail to comply with a compliance order made by the Tribunal under section 212 of the RTA

you have breached a duty and have received two previous breach of duty notices for the same breach

you are a public tenant and you mislead the public housing landlord about your eligibility for public housing

you are a public tenant and you traffick or attempt to traffick drugs, supply drugs to a person under 18, cultivate or attempt to cultivate a narcotic plant, or possess preparatory items for the purpose of trafficking in the rental property or common area

landlord’s principal place of residence

If the property was the landlord’s main place of residence before you moved in, they may give you a 14-day notice to vacate if:

you have a fixed-term tenancy agreement; and

the termination date on the notice is on or after the expiry date on your tenancy agreement; and

it is stated on your tenancy agreement that the premises were the landlord’s main place of residence before you moved in; and

it is stated on your tenancy agreement that the landlord intends to move back in at the end of the fixed term.

28-day notice to vacate by mortgagee

If there is a mortgage over the rental property that was entered prior to your lease, and the mortgagee (usually a bank) becomes entitled to possession of the property, or to sell the property, the mortgagee can give you a 28 day Notice to Vacate.
In most cases, tenants may be able to attend the possession order hearing, and seek to delay the time before when the warrant to evict is executed by the police. The Tribunal can grant up to a maximum of 30 days before the warrant can be purchased.
If you are forced to vacate the rental property because of a Notice to Vacate by the mortgagee, you may be able to claim compensation from your landlord. Advice should be sought in these matters.

60-day notice to vacate

A 60-day to a notice to vacate can only be given where there is no fixed-term tenancy agreement, or when the termination date on the notice (ie the date that you have been given to vacate on or by) is on or after the expiry date of your fixed-term agreement.

The landlord can give you a 60-day notice to vacate when, immediately after the 60-day period, the premises will be:

demolished

used for any purpose other than as a rented residence (such as a business)

occupied by the landlord, or the landlord’s spouse, son, daughter, parent or spouse’s parent, or someone who normally lives with the landlord and is dependent on the landlord

sold or offered for sale with vacant possession

repaired, renovated or reconstructed, and this cannot be done without the premises being vacant

used for public purposes (if it is public property)

If the landlord serves a notice for any of the first 4 reasons above, they cannot re-let the premises again for 6 months after the notice is given (unless they are letting it to a person referred to in the notice or they have permission from the Tribunal).

A 60-day notice to vacate can also be given if the landlord has entered into a contract of sale of the rented premises.

120-day notice to vacate

The landlord can serve a 120-day no-reason notice to vacate when there is a periodic tenancy agreement (that is, there is no fixed term or the fixed term has ended) or when the termination date on the notice (ie the date that you have been given to vacate on or by) is on or after the expiry date of your fixed-term agreement.

end of fixed-term lease

The landlord can give you a notice to vacate at the end of your fixed term. The termination date on the notice must be the same as the expiry date on your fixed-term agreement. If you have a fixed-term agreement for less than 6 months, the landlord can serve a 60-day notice to vacate. If you have a fixed-term agreement for 6 months or more, the landlord can serve a 90-day notice to vacate.

If you leave before the end of the fixed term you may still be liable for rent until the date that your fixed term expires.

serving a notice

A notice to vacate must be in the proper form and be signed and dated by the landlord or agent.

It cannot just be left in your letterbox or under your door. It must be given to you in person, sent by registered mail, or the landlord might give you the notice by electronic method such as email if you agree. If you receive a notice to vacate electronically and you have not consented, check your lease and contact us for further advice.

To be valid, a notice to vacate must provide for the clear minimum notice period required by law plus the time it takes in the post, and one extra day being the termination date. The termination date is not included in the clear notice period. You should also make sure you keep the registered envelope and the tracking number as this can be important evidence. Even if you do not collect your registered post, the Tribunal may still consider that it has been lawfully served.

The reason for the notice must be clearly stated with sufficient detail and it must be a valid reason (except in the case of a 120-day no-reason notice to vacate).

If it does not meet all of these requirements, a notice to vacate is invalid. If you have doubts about the validity of your notice to vacate, you should seek advice as soon as possible.

challenging a notice to vacate

You can challenge a 60-day notice to vacate (except for a notice for the end of a fixed-term agreement) if you think that it is invalid. However, if you want to challenge before the landlord applies to the Tribunal for a Possession Hearing, you must do so within 30 days from the date that you receive the Notice to Vacate. If you don’t challenge the notice within 30 days, you can still challenge its validity at the Possession Hearing.

You can also challenge a 120-day no-reason Notice to Vacate or an end of fixed-term notice to vacate if you believe that it has been given to you in retaliation for exercising your rights under the Residential Tenancies Act 1997 (eg asking for repairs). The following time limits apply to challenging a notice given in retaliation:

60 days to challenge a 120-day no-reason notice to vacate

21 days to challenge a 60-day end of fixed-term notice to vacate for a fixed term of less than 6 months

28 days to challenge a 90-day end of fixed-term notice to vacate for a fixed term of 6 months or more

If you have received a notice to vacate and would like to know if you can challenge it, contact us as soon as possible.

leaving before the notice expires

If you have a fixed-term agreement you have a legal right to stay until the end of that term unless you receive a valid notice to vacate and the Tribunal has granted the landlord a possession order. If you give a notice of intention to vacate with a termination date earlier than the end of your fixed term agreement, there may some liability for breaking your lease early. If you do want to move out before the end of the fixed term, or earlier than required by the notice you can always try to negotiate an agreement with your landlord or agent. Make sure that you get the agreement in writing, signed by you and your landlord or agent.

If you have a periodic tenancy agreement, in some circumstances you may able to give a 14-day notice of intention to vacate after receiving a notice to vacate. Check when you can leave.

This information is a guide only and should not be used as a substitute for professional legal advice.

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This information is a guide only and should not be used as a substitute for professional legal advice.
You accessed this page on Wednesday, 15 Aug 2018. Please check tuv.org.au for the most up-to-date information.

Tenants Victoria | Published: June 2017Tenants help line 03 9416 2577 | tuv.org.au
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